The FBI just tightened a major gun loophole

This is the move that might have kept the Charleston, S.C., church shooter from getting his gun.

Mark O'Connor fills out his Federal background check paperwork as he purchases a handgun at K&W Gunworks in Delray Beach, Florida, on Jan. 5, 2016. CREDIT: Joe Raedle/Getty Images
Mark O'Connor fills out his Federal background check paperwork as he purchases a handgun at K&W Gunworks in Delray Beach, Florida, on Jan. 5, 2016. CREDIT: Joe Raedle/Getty Images

The Federal Bureau of Investigation will add a major database to the nation’s gun background check system, giving examiners access to millions of new law enforcement records. The news was first reported Tuesday by The Trace.

The addition of the National Data Exchange, or N-DEx, could have kept a gun out of the hands of Dylann Roof, the white supremacist who murdered nine black churchgoers in Charleston, S.C., in June 2015.

Roof was prohibited from buying a gun under federal law because he admitted to drug possession after a previous arrest. But the gun background check system only had a record of the arrest, not his admission.

“[I]t’s a little too late,” said Steve Hurd, who lost his wife, Cynthia Hurd, in the Charleston shooting. “People lost their lives because of this mistake.”


The new policy could take up to two years to implement, according to The Trace. But it won’t require changes to FBI regulations, as the agency previously said it would, dramatically streamlining the process.

Adding N-DEx to the background check system has been a long time coming. A 2015 FBI review of the Charleston shooting suggested adding N-DEx to the National Instant Criminal Background Check System (NICS). The Department of Justice’s Inspector General echoed that suggestion when it audited NICS in 2016.

Just last month, a federal judge lit into the FBI for “abysmally poor policy choices,” including not giving NICS examiners access to N-DEx.

All licensed firearms dealers have to run background checks on potential buyers through NICS. In the vast majority of cases, the FBI says yes or no immediately. But in almost a million cases last year, the agency had to delay a background check to do more research — usually when NICS had a record of an arrest but no record of its outcome.

If the agency can’t complete a check within three business days, the dealer can legally choose to sell the firearm anyway — a provision of federal law that gun control advocates call the “Charleston loophole” because it allowed Roof to buy his handgun.


The number of background checks the FBI can’t finish on time has risen steadily since at least 2014, according to data obtained by ThinkProgress — from 3.24 percent of all checks in 2016 to 3.59 percent last year.

Those percentages are small, but they amounted to 310,232 delayed background checks last year where a person prohibited from buying a firearm under federal law could have gotten one anyway.

And that risk isn’t just theoretical: In 2016 alone, the FBI asked the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives to take back 4,170 guns that wound up in the wrong hands because of a delayed background check.

N-DEx still won’t be part of initial NICS checks. But examiners will be able to query the 400 million-plus records in N-DEx when a background check is delayed, hopefully reducing the number of background checks that hang in limbo past the three-business-day deadline.

But the gun background check system sill faces serious challenges — including the growing number of background checks, a lack of sufficient resources, spotty records from courts and law enforcement agencies, and policies that seriously limit how deeply its examiners can investigate any one case.